Return of the brooding spirit of the law

While the privacy judgement is a cause for celebration, its full benefit will only come when it is applied to actual state actions that undermine it

One of the lowest points in the history of the Indian Supreme Court has been when during the proclamation of Emergency, it refused to enforce fundamental rights. By its decision in ADM Jabalpur v. Shivakant Shukla the court agreed with the government to suspend fundamental rights thereby permitting it to hold people in detention, without any opportunity to move court. More importantly, it gave wide police powers to the government to pursue state interests at the cost of fundamental rights. This very tension between the government and the individual came into play in the right to privacy hearings which have delivered a historic judgement.

Vishwajyoti Ghosh, Delhi Calm (2010), page 179.

The right to privacy was a constitutionally accepted and applied right recognised by an interpretative device of the Supreme Court since 1975. Over the decades, more than 30 decisions of the apex court applied privacy as a bundle of rights that permitted liberty of thought and action. Some instances include safeguards against indiscriminate phone tapping, narco analysis and even bodily integrity. However, about two years ago, this was thrown into doubt when in the midst of the hearings of the Aadhaar case the government disputed the very basis of the right to privacy. To be fair, this was a technical argument that required an answer due to judicial propriety, though it lacked substantive merit. Yesterday, nine judges of the Supreme Court said in one voice and six judgements, that the right to privacy is inherent in our fundamental rights.

Lawyers will, over the next few weeks, spend substantial time debating its reasoning but there are a few noticeable features which are clearly evident. The constitutional right to privacy is no longer in any dispute and stands on firm ground. Its breadth is established over the entire chapter of fundamental rights, which include equality, free expression, right to life, religion. This also means the Aadhaar cases will now proceed for arguments on their merits which were gridlocked due to this pending decision. But this case goes far beyond Aadhaar and holds the promise of renewing the vitality of the complete spectrum of civil liberties. For instance, the judgement quite clearly establishes the link between privacy, dignity and sexual autonomy. In doing this, it undercuts the basis of another dark stain on the history of the court when three years ago in the Suresh Koushal v. Naz Foundation case, the court refused to strike down Section 377 of the Indian Penal Code. It is now only matter of time when the case will be formally overruled.

The basis of this is a key recognition of the nature of privacy being a natural right. The Supreme Court, by stating that the state does not bestow privacy, also has limited its ability to take it away. While recognising that even natural rights are subject to limitations, high thresholds are prescribed. This follows the reasoning of Justice H.R. Khanna in the ADM Jabalpur case who wrote the sole dissent at a time when confronting the government with constitutionalism seemed impractical. Justice Khanna put his ascendance to the chair of the Chief Justice of India in peril by stating that the government of the day could not destroy fundamental rights. But losing against the majority he fashioned his dissent as an, “appeal to the brooding spirit of the law, to the intelligence of a future day”. This was an act of constitutional principle and judicial courage. Recognising his call, our Supreme Court has finally overruled ADM Jabalpur, but will our court assimilated the principles of constitutionalism?

While the privacy judgement is a cause for celebration, its full benefit will only come when it is applied to actual state actions that undermine privacy. Adherence to constitutional principle is not an academic exercise, but requires a prompt protection of real rights and liberties. Judicial action should spring at moments when the state oversteps onto the citizen. Few would dispute that determinations on privacy would be of greater benefit when the Supreme Court protects us with foresight rather than retrospect.

It is necessary to recognise that the government has not only wagered the right to privacy in the Supreme Court but has taken various measures to threaten it. Hence, the true test of the privacy judgement will be in its subsequent application to state actions when it sets boundaries and provides safeguards. This includes the Aadhaar batch of decisions which have not been comprehensively heard for more than two years. If the Supreme Court has to truly secure liberty it has to overrule ADM Jabalpur both in practice and principle.

Note : Originally published by the Indian Express on August 25, 2017.

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